This article is prompted by recent publicity about drunk driving plea agreements in Lake County, Indiana. I decided to write on the topic after reading in the July 20,2016 edition of the NWI Times of Lake County Prosecutor Bernard Carter’s new policy of no “reduction” plea agreements for drunk driving defendants.
When I entered the practice of law, the threshold for drunk driving was 0.15% BAC. Today that legal threshold is 0.08% BAC. Why the change in the law? Credit the persistence of the MADD lobby and our federal overlords coercing the Indiana General Assembly (not once but twice). I regard driving at 0.08% BAC as being no more dangerous than driving while holding a cell phone. Yet the former activity is condemned and punished while the latter is tolerated if not promoted.
If you should drive today with BAC between the new threshold of 0.08% BAC and the old standard of 0.15% BAC, if you cause no harm to others or to their property, if this is your first offense, and if there is no serious companion offense (such as a speed contest or resisting arrest), then it makes perfectly good sense to recognize your minimal culpability with a “reduction-type” plea agreement calling for a conviction of reckless driving rather than the more serious OWI (drunk driving). It saddens me that Prosecutor Carter has allowed himself to be bullied into the abandonment of a sensible and responsible prosecutorial policy.
The darker future for drunk driving defendants is made a bit less tolerable by the perception (if not the reality) that exceptions will be made (as in the past) for the privileged few, for the well-born, for the politically connected. I urge the media to be vigilant in reviewing Prosecutor Carter’s compliance with his pledge. We should know soon enough when some officeholder or other public figure (perhaps a NWI Times editor) stands charged with drunk driving.
Prosecutor Carter’s confidence that drunk driving defendants will simply agree to plead to the charge (as opposed to demanding a trial) is bolstered by a draconian system of beginning almost every drunk driving prosecution with a suspension of driving privileges. That suspension of driving privileges without any prior hearing can be terminated most easily with a plea agreement. My personal hope is that every drunk driving defendant in every Lake County Court will henceforth demand a jury trial. Ere long defendants would begin to be discharged for delay. Other defendants might discover that jurors are in fact willing to listen to the evidence and to acquit when appropriate.
As for my own practice, Mr. Carter’s new policy will have little impact. Few drunk driving defendants find their way to my door, so much so that I wonder how drunk driving practice can be so concentrated without corruption of some sort.
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